Citation Nr: 21005607 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 18-27 608 DATE: February 2, 2021 ORDER Entitlement to compensation under 38 U.C.S. §1151 for the Veteran’s left hip replacement is DENIED. FINDING OF FACT The Veteran’s left hip disability did not the result from surgeries that were carelessness, negligent, the product of lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing treatment, nor was such disability proximately caused by an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation pursuant to 38 U.S.C. § 1151 for an additional disability as due to left hip surgeries performed by VA on October 9, 2015 and/or October 27, 2015 have not been met. 38 U.S.C. §§ 1151, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2020).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from June 1958 to March 1962. Entitlement to compensation under 38 U.C.S. § 1151 for a left hip displacement following replacement surgery is denied. In September 2016, the Veteran submitted a VA Form 21-526EZ. Thereby, the Veteran initiated a claim for entitlement to compensation under 38 U.C.S § 1151 for left hip replacement. The Veteran’s left hip was replaced at a VA Medical Center (VAMC) on October 9, 2015 and October 27, 2015. A veteran who suffers disability resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability “in the same manner as if such additional disability . . . were service-connected” if the additional disability was not the result of willful misconduct and was proximately caused by “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of [VA] in furnishing” that treatment or “an event not reasonably foreseeable.” 38 U.S.C. § 1151 (a)(1)(A), (B); 38 C.F.R. § 3.361 (a)-(d); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The purpose of the statute is to award benefits to those veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151 (a). First, there must be evidence of additional disability, as shown by comparing the veteran’s condition before and after the VA medical care in question. 38 C.F.R. § 3.361 (b). To determine whether a veteran has an additional disability, VA compares the veteran’s condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the veteran’s condition after such care, treatment, examination, services, or program has stopped. VA considers each body part or system separately. The additional disability must not be the result of the veteran’s willful misconduct. 38 U.S.C. § 1151 (a); 38 C.F.R. § 3.301 (c)(3). Second, the additional disability must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program furnished the veteran by VA. 38 C.F.R. § 3.361 (c). Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361 (c)(1). In order for additional disability to be compensable under 38 U.S.C. § 1151, the additional disability must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. 38 C.F.R. § 3.361 (c)(1); Loving v. Nicholson, 19 Vet. App. 96, 99-100 (2005); Sweitzer v. Brown, 5 Vet. App. 503, 505 (1993). That is, the additional disability must have been the result of injury that was part of the natural sequence of cause and effect flowing directly from the actual provision of “hospital care, medical or surgical treatment, or examination” furnished by VA and such additional disability must be directly caused by that VA activity. Loving, 19 Vet. App. at 101. Third, the proximate cause of the disability, as opposed to a remote contributing cause, must be (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (2) an event that was not reasonably foreseeable. 38 U.S.C. § 1151 (a)(1); 38 C.F.R. § 3.361 (d). Thus, 38 U.S.C. § 1151 contains two causation elements - an additional disability must not only be “caused by” the hospital care or medical treatment received from VA, but also must be “proximate[ly] cause[d]” by the VA’s “fault” or an unforeseen “event.” 38 U.S.C. § 1151 (a)(1). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1376-77. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curium, 78 F.3d 604 (Fed. Cir. 1996). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. In this case, the Veteran contends that compensation is warranted under 38 U.S.C. § 1151 for his left hip replacements, which occurred at VA facilities on October 9, 2015 and October 27, 2015. In September 2016, VA received a copy of a letter the Veteran had sent to President Obama. Therein, the Veteran posited that, “I had hip replacement on my left hip at Iowa City, Iowa VA hospital. That night Dr. Cook came to my room and told me that he . . . had screwed up. The bone tissue was softer than they thought and they drove the implant too far (socket).” The Veteran continued his statement with, “(w)hile in therapy on Oct 21, 2015 a gal moved my leg too far to the outside causing my hip to pop loud enough to hear she turned the socket sideways.” The Veteran concluded with, “this whole VA screw up has my marriage falling apart because of the tension it has created. I feel I should be compensated for it.” In March 2017, a VA examination report was generated that addressed the Veteran’s claim for entitlement to compensation under 38 U.C.S 1151 for left hip replacement. The VA examiner noted that, “(h)e’s had surgery done at the VA in Omaha. The first was a primary total hip arthroplasty done in October 2015. He states that after the primary hip surgery he was undergoing physical therapy and the acetabular component shifted. He went to see the orthopedic surgeon and was told he needed a revision which was done 16 days after the primary. He was told that his acetabulum was revised and bone grafted.” The VA examiner opined that, “1) (i)t is unlikely that left hip surgery performed at the VA Iowa City VA Medical Center on October 9th 2015 and then again October 27th 2015 became worse as a result of treatment/surgeries performed at that facility. 2) The veteran did have complications in the first surgery on October 9th 2015. This is a recognized complication which was disclosed in the consent form that the veteran signed and acknowledged prior to surgery. Please refer to page 3 of the informed consent that the veteran signed on September 30th 2015 prior to his surgery. 3) The veteran is unlikely to have additional disability and this could not have been foreseen by a reasonable provider. 4) The complication was recognized in a reasonably timely manner. The veteran had appropriate treatment for the complication. The veteran's recovery was delayed by approximately two weeks. His slow rehab could be attributed to advanced arthritis of the left hip for years compounded by morbid obesity.” In March 2018, the Veteran submitted his notice of disagreement (NOD). Therein, the Veteran posited that, “(i)f no mistake was made why was a revision done 16 days after the original of Oct 9, 2015 and was done by a specialist from University of Iowa Hospital. Dr. Cook specifically said he was not going to do the revision because was not his expertise.” In July 2018, VA received a VA Form 646. Therein, the Veteran’s representative posited that, “(the Veteran) had hip replacement surgery at the VA Iowa City Medical Center on October 9, 2015 and then again October 27, 2015 . . .. The likelihood of (the Veteran) having a USC 1151 claim can be justified based on the fact that he had the original hip replacement surgery and due to complications at no fault of the veteran had to go back into surgery to resolve the continued complications from the original surgery.” In March 2019, the Board considered the Veteran’s entitlement claim for compensation under 38 U.C.S 1151 for left hip replacement. At that time, the Board concluded that, “(t)he criteria for entitlement to compensation pursuant to 38 U.S.C. § 1151, for the left hip replacement surgeries performed on October 9, 2015 and/or October 27, 2015 at the Iowa City VAMC, have not been met.” In February 2020, the Court of Appeals for Veterans’ Claims (Court) issued a joint motion for remand (JMR). Therein, the Court relayed that, “the March 2017 VA medical opinion is inadequate, and the Board erred in relying on this opinion.” The Court relayed that, “it is unclear from Dr. Choudhry’s opinion whether Appellant’s hip surgery resulted in an additional disability or complication, whether this complication was reasonably foreseeable, and whether this complication/disability was the result of VA treatment. As a result, neither Dr. Choudhry nor Dr. Siorek provided an adequate medical opinion as to Appellant’s § 1151 claim. Therefore, remand is warranted for a new VA opinion.” The Court relayed that, “neither Dr. Siorek nor Dr. Choudhry discussed a favorable December 2017 orthopedic consult. In December 2017, Appellant reported persistent pain, burning, and numbness, as well as a long left leg. . . . The provider stated that Appellant’s residual numbness and burning pain were likely neurological and that his pain was ‘likely to be neurological in origin from previous surgical procedures.’ . . . Because this consult presents favorable evidence that was not discussed by the 2017 VA examiner, on remand the Board shall ensure that the examiner considers this December 2017 orthopedic consult.” The Court relayed that, “(t)he Board also failed to ensure that VA satisfied its duty to assist by obtaining a complete copy of the consent form Appellant signed prior to his surgery. . . . In this regard, the record contains an abbreviated characterization of a September 2017 informed consent form that Appellant signed. . . . This abbreviated version specifically noted that the ‘full consent document can be accessed through Vist[A] Imaging.’ . . . Given the nature of this claim, the informed consent is relevant and should have been obtained by the Board. Moreover, when rendering his opinion, Dr. Choudhry specifically relied on page three of the consent form disclosing surgical complications, and this portion is not included in the abbreviated version of record. . . . On remand, the Board shall ensure that a complete copy of Appellant’s informed consent is obtained and added to the record.” Finally, the Court relayed that, “the Board failed to ensure that VA satisfied its duty to assist with regard to Manor Care records. . . . Appellant received treatment from Manor Care following his hip replacement surgery, yet these records are still outstanding. According to VA treatment records, following his first hip replacement surgery, Appellant was released to Manor Care for rehabilitation from October 14, 2015, until October 26, 2015, when he underwent a second VA hip surgery on October 27, 2015. . . . The record does not reflect that VA attempted to obtain these records. As such, on remand the Board shall make reasonable efforts to obtain the treatment records Manor Care.” In July 2020, the Board addressed the Veteran’s claim for compensation under 38 U.C.S. § 1151 for left hip replacement. At that time, the Board remanded the Veteran’s claim to the agency of original jurisdiction (AOJ) for additional development. The Board directed the AOJ to secure any outstanding pertinent medical records, obtain the Veteran’s complete surgical consent forms, and obtain a VA examination report that addressed whether the Veteran’s current left hip disability was the result of the VA-administered surgeries. The Board directed the VA examiner to consider the December 2017 orthopedic surgery consult, which was generated at the Columbia VA Medical Clinic. In September 2020 , the Veteran’s treatment records from the Manor Care medical facility were associated with the claims file. After review, the Board finds that the records do not contain evidence showing any additional disability that resulted from the VA-supplied left hip replacements was the product of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, or by an event not reasonably foreseeable, or that informed consent was not obtained. In November 2020, the Veteran’s signed consent for the surgeries on October 9, 2015 and October 27, 2015 were associated with the claims file. After review, the Board notes that the consent forms address the complications and symptoms identified by the Veteran during the course of this appeal. Specifically, the Veteran was notified that, “(t)he implanted devise may move, fail, or become infected. You may need surgery to reposition, remove, or replace it.” The Veteran was also notified that, “(k)nown risks of this treatment include, but are not limited to: pain, numbness, swelling, weakness or scarring where tissue is cut.” Important to this Board analysis, the Veteran’s signed consent forms described the known risks and side effects of the left hip replacement procedures that he underwent at a VA facility. In November 2020, a Medical Opinion Disability Benefits Questionnaire was associated with the claims file. After a thorough review of the pertinent evidence with the Veteran’s claims file, the VA examiner supplied the following, well-reasoned and supported medical opinions: “(b)ased in the records, Veteran had total left hip replacement on 10/9/15 which required revision due to failure on 26 October 2015. Veteran claims that a disability was due to the failure in the first surgery. Hip replacement surgery’s proven track record for safety and improving quality of life and life expectancy in patients is well-known. What may be less so is that the loosening of a hip replacement is a normal consequence associated with hip implants, and patients who experience it may require revision surgery to correct it. . . . People with a body mass index (BMI) under 25: Each BMI unit over 25 is associated with a 3 percent increased risk of loosening. He claims of residual numbness and burning pain. Pain and numbness are common complications of major surgeries like total hip replacement due to the inevitable nerve damage during the procedure and scarring as part of the healing process. Therefore, the proximate cause of the Veteran’s additional disability of the hip was less likely due to A) carelessness; B) negligence; C) lack of proper skill; D) error in judgment . . . Hip replacement surgery is among the most common orthopedic procedures and performed only by trained health providers. There was no indication that VA failed to exercise the degree of care that would be expected of a reasonable health care provider or VA furnished medical treatment without the Veteran’s informed consent.” The VA examiner relayed that, “(i)t is my opinion that the Veteran’s current left hip disability was the result of the VA Administered left hip surgery.” The VA examiner also relayed that, “(t)he claimed disability was reasonably foreseeable as hip replacement is a common procedure so I believe the common complication post-surgery are discussed to the understanding of the claimant prior to securing consent.” The Board notes that the VA examiner considered the Veteran’s December 2017 VAMC orthopedic consult when rendering the supplied opinions. Based upon the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to compensation under 38 U.S.C. § 1151 for the left hip replacements, which occurred at VA facilities on October 9, 2015 and October 27, 2015. The Board notes that the Veteran has additional disability from the left hip surgery. However, the November 2020 VA examiner found that the disability was not due to carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA as required to establish compensation under 38 U.S.C. § 1151. The Board acknowledges the Veteran’s contention that the first left hip replacement was not done properly, which resulted in a second surgery in the same month. The Board notes that the March 2017 VA examiner relayed that the Veteran’s first left hip replacement had complications and, therefore, recovery was delayed. The Board also notes that the complication the Veteran endured, movement or failure of the implanted left hip, was addressed in the consent form that he signed prior to the first surgery. The November 2020 VA examiner noted that a loosening of a left hip replacement is normal, and it may require a revision surgery to correct. The VA examiner also noted that pain and numbness commonly accompany hip replacement surgery. The Board observes that the November 2020 VA examiner opined that the Veteran’s currently endured left hip disability was the result of the VA administered surgery. However, the VA examiner also opined that the Veteran’s current left hip disability was a common complication post-surgery, and was discussed with the Veteran prior to securing his consent. Finally, the examiner opined that there was no indication that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. Notably, the November 2020 VA examiner’s opinions are supported by a rationale and explanation that are based on facts gained from a thorough review of the record and are consistent with the facts in the record. Moreover, those opinions are not rebutted in the record by any contrary opinions rendered by a medical professional. Accordingly, the Board assigns significant probative weight to the November 2020 VA examiner’s opinions. In addressing lay evidence and determining what, if any, probative value may be assigned to it, the Board must consider elements of both competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, neither the Veteran nor his representative are competent to offer a probative opinion as to the complex medical questions regarding the degree of medical care rendered for the Veteran’s left hip and the appropriateness of that care. Such an opinion requires critical analysis of the Veteran’s medical history, advanced knowledge of the Veteran’s conditions, and application of learned medical principles to the specific facts of this case. Accordingly, the opinions expressed by the Veteran and his representative regarding the care rendered to the Veteran are entitled little probative weight. In contrast, the Board assigns far greater weight to the findings and conclusions reported by the November 2020 VA examiner. In summary, there is no competent evidence showing that any additional disability resulting from the left hip replacements was the product of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, or by an event not reasonably foreseeable, or that informed consent was not obtained. In light of the above, the Board finds that the criteria for entitlement to compensation under the provisions of 38 U.S.C. § 1151, for the October 9, 2015 and October 27, 2015 left hip surgeries, have not been met, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board RLBJ, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.